There has been a lot of talk recently about how the Appellate Body has elevated its past rulings to the level of "binding precedent," and this is in contrast to how things worked with GATT panels. Senator Hawley was picking up on that point when he said the following in an exchange on Twitter: "the largely advisory dispute resolution process of GATT replaced w/ binding WTO process, complete w/ appellate body able to rely on its own decisions as precedent."
As I wrote about here (with Jim Bacchus), I disagree with that take on what the Appellate Body has done with its past rulings. Nevertheless, Hawley's statement got me thinking about what things were like under the GATT, so I did a couple searches. I offer below a sampling of some references to "precedent" I found in GATT panel reports (either from the summary of the parties' arguments, or from the panel's reasoning). Clearly, the parties and panels were comfortable with the term "precedent." What they meant by it is a little unclear to me, though, and I'd be happy to hear from people who were involved in litigating these cases.
EEC - Apples (US) may be of particular note here, because the panel seems to indicate that it will look at precedent to a degree, but that it is not "legally bound." To me, that seems like a less precise way of expressing the Appellate Body's "cogent reasons" standard, under which the Appellate Body tried to explain when it will depart from past rulings. (Of course, given the controversy over "cogent reasons," perhaps greater precision is not always a good thing!)
A sampling of GATT cases that mention "precedent"
U.S. - Auto Taxes (1994):
3.59 The United States noted that GATT history and precedent established that it was not inconsistent with Article III to distinguish between similar products based upon objective criteria with a legitimate (non-protectionist) underlying policy purpose, as was the case here.
...
3.73 The European Community considered that under applicable precedent, GATT employed a two-step process to determine whether a challenged internal tax or other measure conformed with Article III.
...
3.205 The United States argued that the EC's argument was not based on precedent or language of Article XX(g).
...
3.287 The United States disagreed with the EC's assertions in every respect. ... This was inconsistent with all GATT precedent. As stated by a previous panel, "the Article III:4 requirement was one addressed to relative competitive opportunities created by the government in the market, not the actual choices made by enterprises in that market."100
EEC - Bananas I (1993):
143. Costa Rica, Guatemala, Nicaragua and Venezuela said that application of the procedural principle of "estoppel" to this case would be inadmissible. As had been clearly established by international doctrine and precedent, for "estoppel" to exist it was not sufficient for a party to act in a specific way, but there must also be an injury resulting from this action from another party.
EEC - Apples (US) (1989)
3.4 ... By invoking the burden of proof, the United States was attempting to sidestep the precedent of the 1980 panel in favour of other panel reports. The Community had based its approach on the 1980 precedent, particularly as that panel dealt specifically with the subject of the dispute, whereas the others did not.
...
5.1 ... The Panel noted carefully the arguments of the parties concerning the precedent value of this Panel's and other previous panels' recommendations, and the arguments on the legitimate expectations of contracting parties arising out of the adoption of panel reports. The Panel construed its terms of reference to mean that it was authorized to examine the matter referred to it by the United States in the light of all relevant provisions of the General Agreement and those related to its interpretation and implementation. It would take into account the 1980 Panel report and the legitimate expectations created by the adoption of this report, but also other GATT practices and panel reports adopted by the CONTRACTING PARTIES and the particular circumstances of this complaint. The Panel, therefore, did not feel it was legally bound by all the details and legal reasoning of the 1980 Panel report.
U.S. - Tuna (Mexico) (1991)
3.12 Mexico responded that the precedent cited by the United States referred to the interpretation of Article XI and not to the interpretation of Article III as such; the same precedent clearly stated that "the General Agreement distinguishes between measures affecting the importation of products, which are regulated in Article XI:1, and those affecting imported products, which are dealt with in Article III"; another panel report had stated that: "the Panel considered that it was not necessary to decide in this particular case whether the practices complained of were contrary to Article III:4 because it has already found that they were inconsistent with Article XI"21;
U.S. - Tobacco (1994)
47. Australia considered that the U.S. regulations governing the importation, internal sale and use of tobacco contained in section 1106 of the 1993 Budget Act violated its obligations under the General Agreement. ... The 1978 Animal Feed panel47 provided a relevant precedent with the conclusion that "the measures ... with a view to ensuring the sale of a given quantity of [domestic product] protected this product in a manner contrary to the principles of Article III:1 and to the provisions of Article III:5, second sentence".
EEC - Dessert Apples (1989)
3.12 The EEC also noted that the 1980 Panel (para. 4.6 of its Report) had found that the Community did restrict the quantities permitted to be marketed. As the system (outlined in paras. 2.1-2.8 above) remained the same, there were no grounds on which to reverse this finding. The precedent value of the 1978 Panel finding concerning the Community's régime for tomatoes was obviously less than that of the previous Panel which had looked directly at the marketing restrictions on apples. More generally, the EEC distinguished between relevant and irrelevant precedents. They saw the 1980 Panel report as a clear and relevant precedent in the present case. Other cases were irrelevant because they concerned a totally different situation, or they lacked any precedential value because the legal reasoning involved had not been agreed upon by the CONTRACTING PARTIES. The latter point was particularly true of the 1987 Panel on the Japanese import restrictions. The EEC recalled the reservations expressed concerning its adoption by several contracting parties, including the Community. Indeed, the EEC had agreed to its adoption only on the basis that it did not in fact constitute a precedent.
